AM I ENTITLED TO SPOUSAL MAINTENANCE?
Parties to a relationship that has broken down have a duty to support and maintain each other as far as they are financially able to do so, taking into account the lifestyle they maintained during the relationship.
When couples separate they can seek court imposed or consent orders to financial arrangements, where one party has the capacity to pay, and the other is unable to otherwise support themselves.
These payments can be made on an interim or ongoing basis, either as a lump sum or by instalments.
WHAT DOES THE COURT CONSIDER WHEN MAKING A DECISION?
Before the payment of spousal maintenance will be ordered by the court, the applicant needs to satisfy at least one of the following:
- The parties cohabitated for at least two (2) years;
- The relationship was registered with the Department of Births, Deaths and Marriages.
- There is a child of the relationship;
- The applicant has made substantial contributions to the relationship; or
- A failure to make an order would result in an injustice.
The court is also required to weigh up the following criteria:
- One parties’ need for maintenance if they are unable to support themselves adequately by reason of:
- Care and control of children to the relationship;
- Their age or physical or mental incapacity for appropriate employment; or
- For any other adequate reason.
- The other party must also have the ability to pay.
The test can be summarised as one party having a need, and the other having an ability to pay. The court will then determine how much should be paid, what the nature of that payment should be, and how frequently it should be paid.
HOW DO I APPLY FOR SPOUSAL MAINTENANCE?
If your former partner does not consent to the payment of spousal maintenance to you, then you will need to file an application in the Federal Circuit Court or Family Court seeking an order to that effect. This can be a complex process and we recommend you obtain legal advice to ensure you are obtaining the most desirable outcome and avoid unnecessary delays in the application process.
When considering an application for spousal maintenance you should also consider your options and entitlement to a property settlement, a separate and distinct matter which deals with the asset pool of the parties to the relationship. For more information, see our article on “Family Law Property Settlements”.
Contact us for further information or a confidential discussion on whether Spousal maintenance is appropriate in your circumstances.